Warren law license matter called non-issue

A law professor is accusing U.S. Senate candidate Elizabeth Warren of having practiced law without a license in Massachusetts.

The political rock was thrown by Cornell Law School’s William A. Jacobson on his blog LegalInsurrection.com. In a Sept. 24 post, he claims that, by serving of counsel on a U.S. Supreme Court case and helping write amicus briefs in several others, Warren was practicing law. And she was practicing law in Massachusetts, he says, because she listed her Harvard Law School address on her briefs.

Jacobson takes considerable pains to make his case, posting images of the cover pages of the Supreme Court briefs to show Warren’s Cambridge address, checking with the Massachusetts Board of Bar Overseers, and, among other things, quoting from Supreme Judicial Court decisions that discuss what practicing law means in Massachusetts.

He even notes that two of Warren’s prestigious colleagues at Harvard – Laurence H. Tribe and Charles Fried – are licensed to practice law in Massachusetts.

“Yet Warren, who was not and never was licensed to practice law in Massachusetts, has held her Cambridge office out to be her law office for the purpose of providing legal representation,” Jacobson blogs.

He counts two violations: operating a law office and practicing law without a license to do so in Massachusetts.

Fried tells Lawyers Weekly he doesn’t know whether he needs a license to practice law in Massachusetts in order to file Supreme Court briefs, but Tribe says Jacobson is plain wrong.

“The fact that Charles and I happen to be licensed in Massachusetts is immaterial. That wasn’t the reason I could practice in the U.S. Supreme Court. I was an inactive member of the California bar as well, which was all that was needed,” Tribe says.

Tribe adds that Warren fully met all of the Supreme Court’s requirements for filing briefs and petitions with that court.

“This was not and could not be a violation of any Massachusetts rule,” Tribe says. “In fact, any state rule that interfered with a federal filing would be null and void under the Supremacy Clause of Article VI of the United States Constitution. Elizabeth complied with all applicable federal rules.”

Rule 5.5 of the Massachusetts Rules of Professional Conduct states that an attorney cannot, without a license to practice in Massachusetts, “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” It also states an attorney cannot, without a license, “hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.”

Michael Fredrickson, general counsel for the BBO, says he does not believe a law professor would be considered to have “a continuous presence” or “an office practicing law.”

“If they actually practice here – as some part-time law professors at some of the smaller schools do – they might,” Fredrickson says. “But being a professor at one of the large schools, their office is a professor’s office, and the fact that they tend to dabble in the practice of law doesn’t run afoul of our rule. I don’t think Elizabeth Warren would fall within that, such that she would have to register here.”

But Jacobson questions why the BBO hasn’t launched a full investigation.

“The rules do not provide any exception for law professors or part-time law professors,” Jacobson says. “If they’re maintaining an office for the practice of law, they have to have a license.”

Jacobson says he has not filed a formal complaint with the BBO.

“I published my findings of fact and conclusions of law,” he says, “and if the Board of Bar Overseers wants to address it, they are aware of it.”

46 comments

Professor Jacobsen was unable to ascertain whether Warren’s Texas and New Jersey law licenses had expired when she was working on cases in Massachusetts.

Additionally, Warren has refused to give the Boston Globe any information about the cases she worked on. These may be at the state level.

No one has been able to get to the bottom of when her law licenses expired. I would hope that masslawyersweekly would at least try to get to the bottom of it, instead of their sour grapes, knee-jerking “debunking” of Professor Jacobson’s intrepid investigation. One would hope that his work would inspire others to launch their own investigation.

The truth must come out. This cynical article here has not answered any questions. Do us a favor and try investigating.

I would also like to know why Professor Warren resigned from her New Jersey law license just 12 days ago.

Evidence elsewhere is that she represented herself as a lawyer and took cases in Massachusetts… without passing our Bar. How dare she given people prepare for years to incur the expense and time to pass the bar. Plus, imagine if you hired her and it turns out she was not legal…. she may be liable for falsifying her credentials. As for the native american, I am still waiting for her explanation and outrage on how/why UPenn and Harvard listed her as Native American if she claims she never told them.

Massachusetts and Mass Dems, let’s do better and avoid the possible shame of electing her.

That’s all well and good, but what about her use of the Harvard office for her private enrichment (monies received via the Traveler’s case)? At the very least, it’s a gross misuse of public resources, and possibly a fraud upon the university and by extension, the public of Massachusetts.

The GOP is once again grasping at straws. Their candidate can’t represent the interests of people of Massachusetts and is doing his best to play down his voting record. This comes in the grand Republican tradition of Birtherism, If Scott Brown can’t run his record anything else brought up at this time is irrelevant.
The one the people of Massachusetts need to keep in mind is who can represent them best and that is Elizabeth Warren

There is at least enough to start an investigation…no? Like a previous poster said, just pretend it is a conservative…imagine the journalists racing to uncover that story…This is a very sad and obviously biased cover-up and all the media are complicit.

There is no inactive status in NJ. See http://www.judiciary.state.nj.us/cpf/internetfaq.htm#privprac
*******
2. I don’t practice law in New Jersey and I don’t want to pay the fees. I want to be placed in inactive status. What are my options? (back to top) There is no “inactive status” in New Jersey. Your options are as follows:
1.if you meet the standards on the bottom reverse side of the billing form, you can claim an exemption from payment by completing the certification (without alteration or qualification) for (i) Armed Forces, AmeriCorps, or Peace Corps or (ii) Retired completely from the practice of law;
2.if you are not exempt and do not pay the required fees, you will be declared ineligible and not in good standing in New Jersey; or
3.you may formally resign from the New Jersey Bar as noted in the answer to Question 3 below.
*******

So Professor Tribe is claiming that an attorney (admitted to practice before the Supreme Court while in good standing in 1 state, but now ineligible and not in good standing in that state) can not only continue to file briefs and appear before the Supreme Court (possible as the SC rule only contemplate suspension or disbarment) but can roam the country writing briefs and meeting with clients, notwithstanding unauthorized practice statutes, as long as that practice is limited to cases before the Supreme Court?

Eddy wants to deflect attention from another Warren scandal. What is she hiding? Why aren’t the press corps doing due diligence to inform the voters of Massachusetts? Voters deserve the TRUE FACTS about Elizabeth Warren before they are asked to cast votes for her!

Don’t journalistic ethics require some disclosure of Tribe’s obvious conflicts? Aren’t there dozens of other MA law professors to quote on these same issues?

*****
Law professors David B. Wilkins ’77, Laurence H. Tribe ’62, and Charles J. Ogletree have all hosted or co-hosted events for Warren, donating between $2,500 and $5,000 each while helping to bring in hundreds of thousands more in support. Law professor Jeannie Suk will co-host a fundraising gala for Warren next week. Wilkins and Tribe, who helped recruit and hire Warren to the Law School faculty in the 1990s, were also integral in defending the candidate against accusations that she deliberately misled the school into believing she was a minority during the hiring process.
*****http://www.thecrimson.com/article/2012/9/19/warren-receives-financial-push/

Do Fried and Tribe have a point? No one is arguing that Warren was prohibited from filing an amicus brief with the Supreme Court. Of course she could do that…. she was a member of the Supreme Court bar. Like, duh, professors.

The question is whether she could, in soliciting clients to write that brief, hold herself out in Massachusetts as an attorney (or open a law office). More to the point, was she engaged in the practice of law, even at the federal level, while in Massachusetts, in violation of state law? Can she really deny that she was operating a law office in Cambridge, MA, even if just for federal cases? It strains credulity.

If I as a reasonable person have a matter before the Supreme Court and I approach a tenured law professor with a clearly established office in one place and the attorney takes my money for his or her services, I am going to assume that he or she is a licensed lawyer. And that’s the story here. She’s been so pious and sanctimonious about consumer protection but never paid a cent into the local legal organization that protects legal consumers.

Did Fried and Tribe know that she wasn’t barred in MA? Did they tell their clients? Look folks, she wasn’t writing these briefs as an academic. She was doing it as a practicing lawyer for cold hard cash.

And what does it say that after all these years in Massachusetts, Warren has never felt compelled to take the bar of the commonwealth she wants to represent in the U.S. Senate? Did she never anticipate that there would be a middle class client in Brockton that she might want to defend pro bono? Or were Massachusetts people with legal problems just not important enough for her?

Your average Yellow Pages personal injury attorney is more a Massachusetts attorney than Elizabeth Warren. The Slip-n-Fall barrister could probably teach the good professor about MGL. Think about it. She’s running as a legal expert and yet she can’t even defend a dog bite case or close a real estate transaction in Boston. At least the incumbent has taken and passed the state bar. Which raises the question — did she ever take the Mass bar?

The BBO general counsel sounds a little slow to catch on. Did he really think the question was whether she needed a law license to be a law professor? Huh? And where, Mr. Frederickson, did this “dabbling” exemption come from? Did you just make that up? So if I get a client and then only advise that one client without a license, you’re cool with my actions? If I do it twice is it still dabbling? What if I draw up a will or run their closing? Where is the line where a beautiful person like Liz Warren has to play by the law? Methinks that he would rather feign a lack of comprehension than just start an investigation that might have a very, very bad outcome for Warren.

Speaking of the BBO, what kind of state bar exonerates people before beginning an investigation? Is is possible that Jacobson knows more about Mass law than the GC of the BBO?

What about the propriety of a tax-exempt university like Harvard being used for a for-profit legal office. Does the MA Department of Revenue, the City of Cambridge, and the IRS know that there’s for-profit activity being conducted from a place that pays no taxes? I didn’t know that the Law Offices of Elizabeth Warren and cases for Traveler’s Insurance fell within 501(c)3. If you have a Fortune 100 client, don’t you at least have the decency to take your business off campus?

I think Warren has to state categorically that she never touched a state case. Until she does that, there will be questions. Hardly a “non-issue.”

Seems that Professor Tribe is seriously uninformed about the rules for admission before the United States Supreme Court.

Supreme Court Rule 5 provides, in part:

1. To qualify for admission to the Bar of this Court, an applicant must have been admitted to practice
in the highest court of a State, Commonwealth, Territory or Possession, or the District of Columbia for a
period of at least three years immediately before the date of application; must not have been the subject
of any adverse disciplinary action pronounced or in effect during that 3-year period; and must appear to
the Court to be of good moral and professional character.

To suggest, as Tribe does, that federal supremacy trumps state bar licensing requirements or that Warren could file briefs if she was inactive in a state is just wrong.

Rule 9. Appearance of Counsel
1. An attorney seeking to file a document in this Court in a representative capacity must first be admitted to practice before this Court as provided in Rule 5, except that admission to the Bar of this Court is not required for an attorney appointed under the Criminal Justice Act of 1964, see 18 U. S. C. § 3006A(d)(6), or under any other applicable federal statute. The attorney whose name, address, and telephone number appear on the cover of a document presented for filing is considered counsel of record, and a separate notice of appearance need not be filed. If the name of more than one attorney is shown on the cover of the document, the attorney who is counsel of record shall be clearly identified. See Rule 34.1(f).

First: Even if Elizabeth Warren was legal to do what she did: The hypocrisy of a liberal Democrat representing Travelers Insurance Co. and getting dismissed cases by injured asbestos workers (most of which were undoubtably union members) is astounding. If Scott Brown did anything similar, the press would destroy him.

Second: It is not at all clear she was an active member of the New Jersey or Texas bars (the only bar associations she was ever a member of) when she raked in $200,000 on part time insurance defense work. If that is true, she may be in for some serious trouble. Does she fall under the “law clerk” exception? Only if she did not appear in any pleadings and that is not entirely clear either.

Just in case you had not noticed, Scott Brown is not exactly endearing himself to the GOP establishment either. The article on the other hand, merely swipes at points that can easily be discounted. Her efforts to file Amicus Briefs should be extolled and not derided or belittled. Lord knows if all people were as well informed and active as they should be, being truly “responsible” citizens, perhaps the nation would not be in the sad shape she is in today! However, there can be little doubt, when even the legal paperwork lists her as Counsel of Record that she is actively working as an Attorney, practicing Law in Massachusetts, yet that point was simply glanced over in this article. It is more interesting for what it is missing rather than what it says. Ad Hominem attacks on the messenger scarcely count as a valid argument against the message.

Once again Conservatives are kicking a dead horse and wetting in their pants saying nobody is listening to them. The right wing in this country has nothing to offer at this point because it was their wars and tax cuts that caused the American economic collapse. They are doing what any good lawyer would in this situation though is “Bang on the table” since they can not use either the facts or the law. Elizabeth Warren is by far the better candidate in this election otherwise the Massachusetts US Senate seat will be an “empty chair.”

Internet commenters giving condescending legal advice to LAWRENCE EFFING TRIBE. This is delicious. Perhaps when y’all finish here you can call Bill Belichick and offer some advice on how to coach football.

Not being a lawyer, I’ll let the journalists and practicioners of law figure this one out. Hopefully, they will.

More importantly, the people of Massachusetts deserve an honest serving politician. The fundamental problem today is the lack of an effective Congress. We have real issues that need resolution. We need people who will do what is right to get our economy back on track. This starts with a fundamental human quality called honesty. I have no doubt that Elizabeth Warrenn is a good, caring person, I have many doubts about her honesty.

All right. Why don’t one of you Massachusetts lawyers file a formal complaint with the BBO and see where it goes? Is there a specified time within which the BBO has to act and initiate an investigation? Prof. Jacobson was on the Howie Carr show answering questions about the objections raised to his blog posts at Legal Insurrection. He specifically addressed the public statement made by the BBO representative. Somebody, please, make this official and make them respond in an official manner so we can get any new law prof standards down on paper.

“‘[D]irecting and managing the enforcement of legal claims and the establishment of the legal rights of others, where it is necessary to form and to act upon opinions as to what those rights are and as to the legal methods which must be adopted to enforce them, the practice of giving or furnishing legal advice as to such rights and methods and the practice, as an occupation, of drafting documents by which such rights are created, modified, surrendered or secured …’maleni Level”
Id.

Willaim A. Jacobson is a right-wing blogger who also holds an associate professor position at Cornell Law. This kind of baseless attack par for the course. These are the kind of people who support Scott Brown. Check out his blog called Legal Insurrection to understand just how conservative he is. The cartoons he posts are particularly disturbing. Let’s instead discuss how Scott Brown actually votes on the issues that affect working people in Massachusetts.

The BBO concerns itself with the professional conduct of attorneys admitted to practice in Massachusetts. So I think you are barking up the wrong tree. But in any event, the right to file a BBO complaint is not limited to Massachusetts lawyers. So have at it.

BBO would laugh this out of their court in less than a heartbeat and any MA lawyer or Bar member would probably be subject to some sort of public humiliation from them. I suspect that Jacobson is well aware of that fact. This is the typical shiny object issue that consumes republicans. Jacobson kjnows this as well. Anything to detract from Scott Brown’s indefensible record of non-accomplishments….

I don’t know if “dabble” is the correct verb to describe someone whose legal work earns her hundreds of thousands of dollars.

And Tribe is (once again) allowing his personal biases cloud his thinking. His Supremacy argument is baloney.

Here is what the SCOTUS instructions for application for admission state:

You must obtain a certiﬁcate of good standing from the presiding judge, clerk, or other
authorized ofﬁcial of the highest court of a State, Commonwealth, Territory or Possession, or of the
District of Columbia, evidencing the fact that you have been a member of the Bar of such court for at least three
years and are in good standing.

LOTS of table pounding around here. I don’t think the questions are baseless. What would be terribly interesting would be to see how Warren addressed her income from a law practice and expenses in her tax returns.

The rule says ” ‘a’ State, Commonwealth, Territory or Possession, or of the
District of Columbia” and not ” ‘the’ State, Commonwealth, Territory or Possession, or of the
District of Columbia in which the Federal Court of Jurisdiction is domiciled.”

The bottom line here is that constitutional as well as large tort claims lawyers consult with academics with regularity. If the BBO or relevant Bar Association wants to become a body of competent jurisdiction for every petty grievance that is out there then, by all means, take this issue up. If Ms. Warren were not a candidate for US Senate, she would be one of any number of scholars a lawyer would turn to for the purpose of nomothetical consultation.

To me, the main issue is whether Profesor Warren was holding herself out as a Massachusetts attorney. While she may technically be allowed to appear in Federal cases that originate in Massachusetts she must make it abundantly clear that she is not licensed in MA.

Many attorneys do this type of “dabbling” and will specifically include their bar admissions on their letterhead, business cards, websites, etc so all prospective clients are fully aware that the attorney they are hiring would not be allowed to practice in state court. This is where the potential issue is for Warren. Did she hold herself out as a MA attorney? You cannot answer that question without further investigation.

The last two sentences are the tell. If Jacobson thought that there was any merit to the issue, he’d have filed a complaint with the BBO. Instead he’s saying “They can read my blog if they feel like it,” as though the BBO has time to go trolling through blogs to see if anyone has ginned up a complaint against one of their members.

Why? Because if he filed a formal complaint, it’d get laughed off in five seconds, and he wouldn’t be able to pretend he’d found a scandal.

Seems like Candidate Warren only follows those rules that are to her advantage. Not being a MA resident, I have found her “antics” comedic at best and pathetic when viewed against the “rich tapestry” of MA politics. Not wonder she is a “merely” a law professor – “Those that can, do; those that can’t, teach. Those that can’t teach, administrate; those that can’t administrate, go into politics.”

In answer to LawDog’s question, no, one does not have to maintain a state law license after having been admitted to practice in the Supreme Court. Not any other federal appellate court for that matter, at least to my knowledge. Federal district courts often require continuous bar membership in a state’s bar.

Some people will believe anything! LOL
I always like to ask WHY the right automatically believes garbage like this without first engaging their brains and THINKING about it.
It seems as though they don’t care about truth as much as slandering democrats and screwing the country.
Question everything, people. It’s your American duty to be an informed voter. Not to believe a bunch of crap.

It’s adorable how many of you have suddenly becomes experts on what constitutes the unauthorized practice of law, especially since the vast majority of practicing lawyers don’t even have any real expertise in this area. But keep telling yourselves that the BBO — among the few folks who *are* experts, and who tend to be extremely cautious about statements like this — are the ones getting this wrong.

It’s weird to see all of these citations to MR 5.5. It was revised in 2002, and Massachusetts didn’t adopt its safe harbor provisions in 5.5(c) or (d) until sometime around 2006, I believe. So how would they apply to a brief filed in 1998?

The quickest way to determine the question is to file a complaint with the Mass Bar. I will do it! I file complaints and ethics charges on these lab rats from time to time. I am sure that the upright defenders of Mass Law will respond quickly, with a year or two at least! Is this the lady that was claiming to be an Indian to get in on the casino handouts? Do they have more Indians or Attorneys in Mass? Colt

As a Massachusetts resident and voter, my basic concern in the upcoming election is who will best represent the best represent the interest of Massachusetts’ residents in the US Senate. On the issues, I find Elizabeth Warren is the better candidate.

Was she legally entitled to take on legal work before the Supreme Court? Her clients’ in house counsel obviously thought so and were apparently satisfied with her work, The Court accepted her briefs,

I don’t care if Elizabeth Warren has a native American ancestor or not. She obviously thinks she does.

I do care that Scott Brown is engaging in groundless, irrelevant attacks on her character, Shame on him.